Gulf, Colorado & Santa Fe Railway Co. v. Bliss
| Citation | 368 S.W.2d 594 |
| Decision Date | 08 May 1963 |
| Docket Number | No. A-9293,A-9293 |
| Parties | GULF, COLORADO & SANTA FE RAILWAY CO., Petitioners, v. George H. BLISS et al., Respondents. |
| Court | Supreme Court of Texas |
McLeod, Mills, Shirley & Alexander, Galveston, Chilton O'Brien, Beaumont, for petitioners.
George E. Murphy, City Atty., King, Sharfstein & Rienstra, Beaumont, for respondents.
George Bliss and others brought this action against Gulf, Colorado & Santa Fe Railway Company and the City of Beaumont for damages to their residential properties caused by flood waters. They alleged in their Second Amended Original Petition that, by reason of certain negligent acts and omissions on the part of Santa Fe, together with acts on the part of the City of Beaumont, flood water was caused to be diverted into their homes and thus brought about the damages complained of. City of Beaumont in its answer denied that it was in any wise negligent and alleged that whatever damages were sustained by the plaintiffs were caused solely by the acts, conduct and omissions of Santa Fe and prayed that in the event plaintiffs recover against the City that the City have indemnity or contribution against Santa Fe. Likewise Santa Fe denied plaintiffs' allegations of negligence and asserted that certain acts on the part of the City of Beaumont constituted negligence and that such negligence was the sole proximate cause of the damages to plaintiffs' homes and the contents thereof, and prayed that it have judgment over and against the City of Beaumont for the full amount of any recovery against Santa Fe or in the alternative for contribution.
The jury found that Santa Fe did not fail to maintain the necessary culverts as required by the natural lay of the land for necessary drainage, but did find that Santa Fe was negligent in permitting old piling and timbers to remain under its culvert and that this negligence was a proximate cause of the damage.
So far as the City was concerned, the jury found that it caused to be collected upstream from the railway culvert a larger quantity of water than would have been collected by the natural lay of the land and that such act was negligence. The jury also found that the City knew and Santa Fe did not know and City failed to inform Santa Fe that the quantity of water which would be collected following an intense and heavy rainfall would exceed the capacity of the railway culvert and that such failure to so inform was engligence. The jury found that neither act of negligence was the sole proximate cause, no corollay issue of proximate cause having been submitted.
The trial court entered judgment for the plaintiffs against Santa Fe but denied them any recovery against the City of Beaumont. The Court also denied Santa Fe any recovery against the City of Beaumont on its cross-action by way of indemnity or contribution. Santa Fe appealed, without filing motion for new trial, its motion for judgment on the verdict having been overruled. Rule 324, Rules of Civil Procedure. The Court of Civil Appeals affirmed the judgment of the trial court. 363 S.W.2d 343.
The only question presented here for decision, is whether Santa Fe is entitled to indemnity or, in the alternative, to contribution from the City of Beaumont. We agree with the Court of Civil Appeals that Santa Fe is not entitled to collect indemnity from the City. The test laid down in Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563, is that for one tort-feasor to be allowed recovery of indemnity against another it must be predicated upon a consideration as to whether the tort-feasor as plaintiff suing the other in tort would be entitled to recover. According to the record we believe Santa Fe does not meet that test. Santa Fe contends that as between it and the City a duty was created in favor of Santa Fe because of the existing licensee status. That has reference to the permission granted by Santa Fe to construct, maintain and use a drainage ditch on a portion of Santa Fe's right-of-way. The duty was, says Santa Fe, to perform the drainage work with reasonable care and because of the failure on the part of the City in that respect Santa Fe was entitled to indemnity, citing Panhandle Gravel Co. v. Wilson, Tex.Civ.App., wr. ref. n. r. e., 248 S.W.2d 799. Additionally, Santa Fe urges that a duty was created in its favor because of the City's superior knowledge and ability to foressee and prevent the flood damage, since the jury found that the City knew, and that Santa Fe did not know, that changes made by the City in the natural flow of the water following an unusually heavy rainfall would exceed the capacity of Santa Fe's culvert, and that City was negligent in failing to so inform Santa Fe. This theory would have considerable weight were it not for the fact that Santa Fe was found to be negligent in permitting its culvert to be blocked with old pilings and timbers which constituted a proximate cause of the damage. We agree with the Court of Civil Appeals that Santa Fe and the City were in pari delicto and equally blameworthy in causing the flooding of the plaintiffs' homes. We, therefore, hold that Santa Fe was not entitled to be indemnified.
Under Art. 2212, Vernon's Annotated Civil Statutes, enforced contribution is allowed among joint tort-feasors who are in pari delicto as to each other. Austin Road Co. v. Pope, supra.
The Court of Civil Appeals, although finding that Santa Fe and the City were in pari delicto, nevertheless concluded that since Santa Fe pleaded that the City's acts of negligence were the sole proximate cause of plaintiffs' damage and failed to plead that they merely proximately caused the damage, the plea for contribution against the City must be denied. In this respect we believe the Court of Civil Appeals was in error.
Our holding will entail a rather extensive discussion of the pleadings and motions filed by the parties and the rulings of the trial court thereon. The case went to trial on the 6th day of July, 1959, on Plaintiffs' Second Amended Original Petition. The plaintiffs complained of both the Santa Fe and the City asserting that Santa Fe was guilty of certain acts of negligence and as to the City alleged:
'That the incident made the basis of this suit resulted from the negligence of the defendant, the City of Beaumont, in some one or more of the following particulars, to wit:
'(a) In failing to dig the drainage ditch flowing generally northerly and southerly running parallel with the said railroad track at a deeper depth under the facts and circumstances.
'(b) In failing to give a greatr fall to the ditch coming from the north and running parallel to said railroad embankment than the other two ditches converging at the trestle in question.
'That each and all of the above and foregoing acts either of omission or commission constituted negligence and amounted to negligence, and were each and all a proximate cause of the injuries and damages made the basis of this suit.'
They further pleaded:
'That by reason of the negligent acts and omissions on the part of the defendant, Gulf, Colorado and Santa Fe Railway Company, together with the acts on the part of the defendant, the City of Beaumont, that such surface or flood water was caused to be diverted into the homes of the plaintiffs herein, and that the floors and foundations of said homes, as well as their furniture, fixtures and other items in and about the plaintiffs' homes were damaged in the following particulars, to wit:'
Throughout the petition the plaintiffs alleged that the negligence of the defendants proximately caused the damage and prayed that they have judgment against the defendants either jointly or severally for their damage. In its cross-action against the City, Santa Fe pleaded that the drainage facilities and ditches constructed by the City negligently caused a greater quantity of water to collect than would have been accumulated by the natural lay of the land...
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